Trademarks and Brands in Merger Control ― An Analysis of the European and Swiss Legal Orders

International Competition Law Series Volume 67

Trademarks and Brands in Merger Control, the first to cover intellectual property (IP) rights from the perspective of merger control, directly addresses the particular legal issues that arise and provides a comprehensive response to the question of how the European and Swiss competition authorities should treat trademarks and brands when assessing a merger. The role of IP rights in merger control procedures has not received the attention it warrants. Most research has focused on the assessment of intellectual property rights in anti-competitive conducts rather than on how a firm can monopolize a market by accumulating such assets. This is despite the fact that access to such assets, whether used or unused, is often a key factor, if not the only one, motivating mergers.

What’s in this book:

In the book’s detailed coverage and critical approach to the topic, the author discusses such aspects as the following:

• the in-depth assessment of the legal and economic foundations of both trademarks and brands, and merger control;
• why trademarks and brands may be relevant to the assessment of mergers, including the distinction between trademarks and brands, the origin of the brands’ strength according to marketing sciences, and how and why brands may provide market power to their holder;
• the conditions under which the assignment or licence of a trademark may qualify as a concentration under the definition of the European Union Merger Regulation or of the Swiss Cartel Act;
• the role played by trademarks and brands in the substantive assessment of a merger, including the definition of the relevant markets, different types of mergers, and the invocation of the failing firm defence;
• the provision of detailed guidelines describing the possible influence of trademarks and brands on the outcome of the merger assessment; and
• the importance of trademarks and brands in the design and assessment of remedies.

At every stage of the study, special attention is given to the decisions of the European Commission and of the Swiss Competition Commission pertaining to IP rights and mergers. The book provides policy proposals on how the European and Swiss competition authorities should treat trademarks and brands at every stage of a merger control procedure.

How this will help you:

As the first detailed analysis of the role of trademarks and brands in the assessment of the impact of a merger on competition, this book constitutes an illuminating response to the uncertainties regarding the outcome of the assessment of mergers that derive from the ‘more economic approach’ that has prevailed in European Law. This book answers questions that arise in practice with regard to the treatment of trademarks and brands and shows how trademarks and brands play an important role in the assessment of mergers in many areas of the economy, which helps in improving legal security both for competition authorities and merging parties. This book will prove to be of special interest to practitioners, business persons, and academics involved in the processes of competition or IP law.

This book is based on a doctoral thesis of the University of Zurich. The dissertation was awarded the Issekutz Preis 2015 and the Annual Award 2016 of the Faculty of Law of the University of Zurich.